This afternoon began the first lengthy session of speeches from States Parties to the Assembly at the World Forum in The Hague. To no one’s surprise, many of the States took the opportunity to address the withdrawal of South Africa, Burundi, and the Gambia from the Court in their remarks and no doubt this will continue to be the case as the speeches continue tomorrow. Overwhelmingly the sentiment from the States who spoke, such as Australia, Canada, Colombia, the Republic of Korea and Slovakia (on behalf of the European Union), was one of regret. Regret that these three States have taken the step towards leaving the Court, rather than continue a dialogue within the Assembly of States Parties (ASP) about their concerns with the Court. Regret that these developments have flown in the face of efforts to see the Rome Statute be truly universal. Regret, because when States parties leave the court, the enforcement of international criminal law becomes harder.
Along with their expressions of regret, States were quick to note that these decisions to withdraw were nonetheless legal decisions by sovereign states, made following the rule set forth by Article 127 of the Rome Statute. They also urged dialogue with these States as well as other States who have expressed concerns in recent weeks and months. As the Representative from Ecuador stated, it is much better to be within an institution if you seek changes, rather than on the outside. However, most States were equally firm in stressing, that while open to and encouraging of dialogue, no compromise of the fundamental values of the Court would be had, they stressed that the integrity of the Court is of utmost importance. Perhaps the strongest voicing of this sentiment came from Switzerland, which declared it would rather have an effective ICC supported by many states, than a weakened court supported by all.
The specific content of these fundamental values was rarely elaborated upon by States; however, Italy clearly and unequivocally stated that the principle of irrelevance of official capacity in Art 27 remains the central pillar of the treaty adopted in Rome in 1998. Canada’s Minister of Foreign Affairs, Stéphane Dion, noted, with regard to Head of State immunity, that equality before and under the law is a bedrock principle of the Court. Finally, Costa Rica stressed that action against the perpetrators of genocide, war crimes, and crimes against humanity should be taken without consideration of the official status of the individual.
A different take on Head of State immunity was taken by Mr. TM Masutha, Minister of Justice of South Africa. Minister Masutha spoke to South Africa’s decision to withdraw, based largely on its perception that the Court and Assembly of States Parties have failed to address its concerns regarding Head of State immunity provision, Article 27, as well as its interaction with Article 98 of the Rome Statute. South Africa feels that it was placed in the “unenviable position” of facing conflicting obligations under the Rome Statute and customary international law arising from the visit of Sudanese President Omar Al-Bashir to South Africa in 2015. The ICC has had an outstanding arrest for President Al-Bashir since 4 March, 2009, but was not arrested by the South African government under its obligations to the Court during his 2015 visit. Minister Masutha very firmly represented South Africa’s decision to withdraw from the Court, but nonetheless stressed that South Africa’s commitment to the protection of human rights all over the world remains unwavering. South Africa, he assured delegates, has already drafted, and put before Parliament, legislation that will facilitate its continued cooperation with international institutions like the ICC.
While South Africa reaffirmed its decision to withdraw from the Court, the two other African States to take to the podium today reiterated their strong support for the Court. The Representative from Botswana declared that it strongly believes that even in the face of challenges the ICC is the only hope for the attainment of justice for victims of genocide, war crimes, and crimes against humanity. Moreover, Botswana, she said, is a staunch member of the ‘Rome Club’. The speech on behalf of the Democratic Republic of Congo (DRC) set out explicitly to reassure the Assembly that DRC will not be withdrawing from the Rome Statute, especially given its domestication of the Rome Statute last November.
The ICC is still faced with the three withdrawals from South Africa, Burundi and the Gambia. Based on South Africa’s speech today, the pleas of other States for dialogue seem unlikely to sway it. Nonetheless, other African States continue to express strong support for the Court, it will be interesting to follow the remaining speeches tomorrow to see if this trend continues.
Meanwhile, the ASP welcomed today its newest State Party, El Salvador, to its first ASP following its accession to the Rome Statute on March 3, 2016. Regardless, of withdrawals the ICC is moving forward, there is justice to be served and impunity to be denied!
This post is written as a member of the Canadian Partnership’s Delegation to the 15th Assembly of States Parties to the International Criminal Court, funded by the Social Sciences and Humanities Research Council of Canada (SSHRC) through the project Strengthening Justice for International Crimes: a Canadian Partnership.